Investigating attorney’s collection of witness statements in employment investigation not privileged and subject to PIA disclosure says Austin Court of Appeals

The City of Houston, Texas v. Ken Paxton, Attorney General of Texas 03-15-00093-CV (Tex. App. – Austin, February 23, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals affirmed the order requiring the release of the documents at issue.

The Mayor of Houston issued executive order 1-39 which created the Office of Inspector General (“OIG”) within the City which was charged with investigating employee misconduct. During an investigation an OIG attorney interviewed several witnesses, including the employees accuse of wrongdoing in a particular case. The documents at issue in this lawsuit are two of the sworn statements by employees. An attorney representing a different employee requested the investigations under the PIA. The City filed a request for an AG opinion to withhold the documents. The AG opined most of the information was protected by the attorney/client privilege and excepted from disclosure, but the two employee statements were not and must be released. The City filed suit, but the trial court ruled in favor of the AG holding the documents must be released. The City appealed.

Relevant to the circumstances here, the PIA provides that a completed investigation made by or for a governmental body is public information and not exempted from disclosure unless it is expressly confidential under other law. Tex. Gov’t Code § 552.022. Texas Rule of Evidence 503(b)(1) provides: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client’s lawyer or a representative of the lawyer.” Tex. R. Evid. 503(b)(1). The privilege extends to a “representative of the client” only if the representative is “a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client,” or is “any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” Tex. R. 503(a)(2). After analyzing the explanations provided by the City, the court held the City failed to meet its burden under the PIA that the documents fell under the privilege. The statements contained an admonition page noting the employees were not to share the information with anyone other than their own lawyers. The OIG’s purpose was not the rendition of legal services to these employees, but to investigate them. There is no evidence that the employees at issue knew their statements to the OIG investigator were for the purpose of the attorney effectuating legal representation for the City.  As a result, they are not protected by the attorney/client privilege and are subject to disclosure.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Goodwin and Justice Bourland.  Memorandum Opinion by Justice Puryear.  The attorney for the City of Houston is listed as Mary Stevenson.  The attorney for the Texas Attorney General is Matthew R. Entsminger.